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Flashcards in Execution of Wills Deck (98):

Execution of Wills: Statutory Formalities

1. T must be 18 or over.
2. Instrument must be executed with testamentary intent
3. T must sign will..
4. Two attesting witnesses who witness T's signing


Special Uniform Probate Code Provision for executing a defective will:

A court can validate a defectively executed will if the will proponent establishes by clear ad convincing evidence that the T intended the document to be his will.
Also, under UPC, a will that is SIGNED by T and a notary is VALID without the need for any witnesses.


What happens if a portion of the will follows T's signature?
a. Clause present at time of execution
b. Clause added after execution

a. i) some states: wills must be signed at end so everything above line ok, everything below NO. ii) UPC and majority -- valid
b. Will is valid but the addition is NOT.


T writes a document in her own handwriting that reads "This is my last will. I revoke all earlier wills. I leave everything to the YMCA." T signs documents. Is it admissible to probate>

a. Half of states: Holographic is NOT allowed. Not entitled to probate unless two attesting witnesses.
b. UPC and some other states: VALID--material provisions must be in own handwriting and signed.


T in hospital bed with contagious disease when will executed. Two witnesses in doorway, standing in hall, screen by bed hides their view of T. T says from behind the screen "this is my will. It looks OK; where do i sign?" After T signs, will brought out to hall. Witnesses hear T from behind the screen request them to witness. Witnesses sign in hall. Has will be validly executed?

Minority Rule: Scope of Vision-- line of sight-- ONLY VALID IF witnesses could have seen T sign if they were to look.

Majority Rule: Conscious Presence Test (UPC): Look at where T is and what he is doing and if there is constant communication between T and witnesses etc.


T is a domiciliary of Pennsylvania and owns some real estate in state X. While on vacation in Florida, T executes a will that meets the requirements for a valid will in Pennsylvania but not in state X. Later T dies after having changed his domicile to New York. Is the will valid for purposes of disposition of the state X real estate?

Common Law and few remaining States: NO
UPC and Majority: YES IF it meets ONE or more of the tests:
1. Place of execution (Florida)?
2. Domicile at Death (New York)?
3. Domicile at execution (Pennsylvania)?

Here the will would have been valid in Pennsylvania.


"I give to my faithful nurse Nell the sum of $30K." Nell is one of two attesting witnesses to the will. Is the will admissible to probate?

a. Older (majority) rule: Interested witness situation does not result in denial of probate of will, but beneficiary-witness loses legacy unless:
1) There were two disinterested attesting witnesses (supernumerary rule); OR
2) Witness-beneficiary would be an heir if there no will, in which case she take lesser of (i) amount given in will, or (ii) intestate share.
**Nell Loses
UPC and modern trend: Interested witness rule abolished. "A will or any provision thereof is not invalid because the will is signed by an interested witness."
**Nell wins


Self-proved wills: At time will is signed by T and attesting witnesses, T and witnesses sign self-proving affidavit under oath before notary public.

Affidavit recites all elements of due execution. Formalities of execution (but not mental capacity, lack of fraud, undue influence, etc.) conclusively presumed.
* No one contest for improper formalities only.


In 2010, T properly excited a will in duplicate giving all property to her children. in 2012 she wrote "VOID" on one of the copies of the 2010 will and drew many vertical lines across front of the one-page document. Will revoked?

It is has been revoked would've been by physical act --do test?


Revocation by physical act requires:

1) intent to revoke;
2) physical act: typical statute refers to "burned, torn, canceled, obliterated, or destroyed."


Will in T's possession from time of execution until death and found in mutilated condition after T's death.

Presumption: T did mutilating with intent to revoke.


Will last seen in T's possession and control not found after T's death.

Reason it can't be found is that T destroyed it with intent to revoke.


T calls her attorney, the place where the will is located, and orders her attorney to destroy T's will. The order is never carried out. Will revoked?

Intent + Act required


What if the attorney had destroyed the will pursuant to T's order? Would the will have been effectively revoked?

Revocation by another person MUST be: 1) at T's direction AND 2) In T's conscious presence.


But if the attorney had destroyed the will but the will was not revoked, how could it be probated given the fact that is has been destroyed?

By satisfying "lost wills" statute. In most states, lost will requires formal proceeding where proponents have burden of proving the contents of the lost will. Copy and one witness or other "clear and convincing proof."


Additional issue raised by case where attorney bungs up revocation of will or where attorney bungs up execution of will: Lucas v. hamm

attorneys can be sued for negligence.


T's 2006 will leaves Blackacre to X, her diamond ring to Y and residue to Z. T's 2009 codicil leaves $5,000 to Y and her diamond ring to M. Codicil does not expressly revoke earlier will. Who takes what?

Rule: Where codicil makes nor reference to will but contains slightly inconsistent provisions, to the extent possible the will and codicil are read together. but to the extent of any inconsistent provisions, the later document controls and thereby revokes by inconsistency the prior will.
M: gets ring
Y: $5,000
X: Blackacre
Z: Residue


What about when there are two wills and the second does not in terms revoke the first?

Same rule as codicil applies. If the second will has no residuary clause, it is presumptively a codicil to the first. There is an implied revocation only to the extent of the inconsistency.
If the second will has a residuary clause: Revokes first will in its entirety.
**Revocation of a will revokes all codicils thereto. BUT revocation of a codicil to a will does NOT revoke the will.


T's will devises entire estate "to my wife, Sheila if she survives me; if she does not survive me, in trust for my children." The will names Sheila as executor "if she is able"; otherwise X is to serve as executor. Two years later Sheila divorces T; T dies two yard after that without having revoked or modified his will. T is survived by Sheila, by two children and by X. Who takes what? Who serves as executor?

UPC and most states: Divorce following a will revokes all provisions of ex spouse; construe as ex-spouse as dead. So X is executor.


What if T and Sheila marry each other again?

She's back in the will (if will hasn't been revoked by another will).


What if T and Sheila separate without a divorce?

Does not affect her rights.
Exception: separation with complete property settlement is seen as a waiver of those rights.


Will divorce revoke a provision for Sheila in T's revocable inter vivos trust?



T's typewritten will made a bequest of $10,000 to my friend X. Subsequent to the will's execution, T drew a line through the figure $10,000 and wrote in above it "$15,000." T then signed his name in the margin opposite the change.
a. Has the 10K been revoked?
b. Can the interlineation be given effect?
c. Can DDR be applied to reinstate the original 10K bequest?

a. Yes
b. NO, UNLESS: (i) T re-executes will or (ii) Republishes by codicil
c. YES. STeps:
1. disregard revocation( the cancellation of the 10K request); 2. based on mistake that the interlineation would be effective; 3. provided the court thinks T would not have revoked the 10K bequest but for the mistake.


Dependent relative revocation (DDR) allows us to disregard a revocation which is based on, induced by, premised on a mistake of law or fact if the court is satisfied that, but for the mistake, T never would have made the revocation.
What are the steps?

1. Disregard a revocation.
2. Because it was based on a mistake of law.
3. Provided the court thinks T would not have revoked the $10 bequest BUT for the mistake.


In 2004, T executes Will 1 which devises his residuary estate "in trust to pay the income to my grandson G until he attains the age of thirty, at which time to distribute the principal to G." In 2009, T executes a new will, Will 2, "hereby revoking all wills heretofore made by me." Will 2 devises his residuary estate to G outright. T DOES NOT destroy will 1. In 2011, T has a change of heart. He has his housekeeper bring both wills to him, reads them both and tells the housekeeper, "you know, I think the property should be held in trust for G after all." With this he destroys WIll2 with the intent of reviving WIll1. T dies in 2013. he is survived by G and by his daughter, S, whom he detests. Who takes what?

Answer by going through steps:
a. Has will-1 been revoked? Yes in 2009 at execution of will2
b. Has will 2 been revoked? yes by physical act
c. Revival: Did revocation of Will-2 "revive" Will-1?
UPC and MOST states: Not automatically. YES IF: still exists, t wanted it revived, will-2 must've been revoked by physical act.
Some States: NO even if T intended.


In states where Will -1 is not revived, what other issue is raised by these facts?

Can we apply DRR? and undo revocation of will 2--> otherwise dies intestate as S best property too and thats not good.


T's will, after making several specific bequests, devised Blackacre "as designated in a memorandum, that I plan to write, and that will be found attached to this will." After T's death, her will and a signed but unwitnessed typewritten note were found in an envelope marked "My will". The note read: "I give Blackacre to the Am. Cancr. society." The note was dated two months after the date on the will. T's sole heir was a distant cousin, Henry, of whom she was not fond of and from whom she had not heard for many years. Who takes blackacre.

Not ACS because the extrinsic document wasn't incorporated.

but we don't know who would take blackacre.


To incorporate an extrinsic document by reference:

(i) Writing must be in existence at time will was executed
(ii) Will must manifest an intent to incorporate the document.
(iii) Will must "describe the writing sufficiently to permit its identification.


What if the facts were the same except that the reference was to a memorandum "that I have written," and the typewritten note was dated two months before the will was executed?

Close but still maybe not. Have to be sure that it reffers to the actual memo. the facts don't say which memo.


What if the will made reference to "a memorandum that I plan to write that makes disputation of various items in my home that are dear to me." The accompanying note, written two months after will was executed, lists various items of furniture and personal effects and names a beneficiary for each item.

Statutory Exception: found in UPC and many other states. Will may refer to written statement or list that disposes of tangible personal property (other than money) not specifically disposed of by the will. The written list must be signed by T and must describe the property with reasonable certainty. May be written before or after will executed; may be altered at any time.


"I devise the automobile that i own at my death to my nephew, Ned. I give the sum of $1,000 to each person who is in my employ at death." Three months after the will is executed T trades his Volkswagen in on a new Cadillac; the effect is to increase the value of the gift to Ned from $1,000 to $9,000. Six months after that T fires two longtime employees and hires three new ones. Then T dies. What is the effect of these events on T's will?

Not a concern. Doctrine of independent significance: Acts having independent lifetime notice may impact on will as well.


T executes will in 2005; it provides (inter alia) "I give the sum of $5000 to my sister, Paula" Paula dies in 2006; she is survived by her husband H and two children. Paula has a will which leaves all of the her estate to H. T dies in 2011. Who takes the $5000?

a. When a beneficiary named in the will dies before (or within 120 hours of ) the testator, the gift LAPSES.
b. UNLESS it is saved by the state's ANTI-LAPSE STATUTES
c. The UPC statute applies when the predeceasing beneficiary is T's grandparent or a lineal descendent of one of the grandparents who leaves issues who survive T.
Result here: Paula's two kids split.


What of the fact that Paula left a will devising all her property to H?

Her issues still get it. Doesn't allow P to choose who takes T's money.


"I devise Blueacre to the children of my good friend, John Bates; I leave the residue of my estate to X." At the time T executes his will, John Bates has three children: A, B, and C. Thereafter, during T's lifetime, Bates has another child (D), and his son A dies leaving a child A jr. Then T dies; he is survived by John Bates; by Bates' three children, B, C, and D; by Bates' grandchild A jr. and by X. Who takes blue acre?

B, C, D (split evenly). Bates' children at T's death.


Class gift rule

When there is a gift by will to a group of persons generically described as a class ("children," "nephews" and nieces," etc) and some class member predeceases the testator and the lapse statute does not apply, the surviving class members take.


What if in the above example, the gift were to the children of my brother John Bates?

B, C, D, and A jr.
Because of Anti-Lapse Statute.


I devise all the rest, residue and remainder of my estate in equal shares to my good friend Alan Andrews, my business partner Betty Bates and my sister Carla Carter. Alan Andrews predeceases T, leaving a child (Alan jr ) who survives T. T , widower is also survived by Bates by Carter and by an only child Stephen. who takes the residuary estate?

Residual Rule
1/2 B, 1/2C - only two remaining residuals.
UPC Majority RULE: if the residuary estate is devised to two or more persons and the gift to one of them fails for any reason, the surviving residuary devises take the entire residuary estate in proportion to their interests in the residue.


What if, in previous problem, it was T's sister Carla who predeceased T leaving a child (carla jr) who survived T? Andrews and Bates also survived T.

Anti-lapse statute--> 1/3 A 1/3B, 1/3Cjr


Specific Devise or Bequest:

I devise Blackacre [my 2006 cadillac] to my son john.
points to specific assets


Demonstrative Legacy (instructions):

I give the sum of $5000, to be paid out of the proceeds of sale of my Acme stock, to my sister Sarah."


General Legacy: specific pecuniary amount

"I give the sum of $10,000 to my daughter Donna."


Residuary bequest

I give all the rest, residue, and remainder of my property to my wife, Agnes.


Intestate property:

When there is a partial intestacy for some reason (e.g. all of the residuary beneficiaries predecease the testator, and the case is not covered by the anti-lapse statute).


What if, in above situation, T's estate is partially insolvent? In what order are the gifts sacrificed to satisfy funeral expenses, expense of administration, creditors' claims?

Start at the bottom at the list and work up.

So start with intestate property, residuary bequest, general legacy, demonstrate legacy, specific devise.


Same will provisions. Some years before her death T sold Blackacre, which was specifically devised to John. What is the effect on the devise to John?
Also, T had sold her Acme stock and did not own any such stock at her death. Does ademption apply to the gift to Sarah?

Nothing is there for john, therefore he is adeemed.

No, ademption doesn't apply to Sarah--- fund with whatever property is there.


At common law and in most states even today, T's intent is deemed to be immaterial. Under the UPC however not only is T's intent material, but several provisions apply to avoid ademption in the following commonly recurring situations:

Will executed before T declared incompetent: if specifically devised property is sold by conservator, or if condemnation award or insurance proceeds relating to the property are paid to the conservator, the specific devisee has a right to a general legacy equal to the net sale price, condemnation award, or insurance proceeds unless testator's disability has been adjudicated to have ceased and testator survives the adjudication by one year.


A specific devisee has the right to the remaining specifically devised and:

Any balance of purchase price owing from purchaser when K is still executory at T's death.
Any amount of condemnation award for taking of the property, to the extent unpaid at T's death.
Any amount of fire or casualty insurance proceeds unpaid at death.
Any real or tangible personal property acquired as a replacement for other similar property
Property acquired as a result of a foreclosure of a security interest on specifically devised note.


"I give and bequeath my Rembrandt painting to my daughter Dora." The Rembrandt painting was incinerated in 2013. The painting was insured and the insurance company duly paid its full value of $150K to T. Subsequently, T dies. Is Dora entitled to the insurance proceeds?

No, Dora is deemed. T wasn't incompetent and T lived long enough to collect insurance.


T's will leaves his "Buick automobile" his son, James. Subsequently T sells the Buick for $5,000 and purchases a new BMW convertible for $40K cash. Is James entitled to the BMW at T's death?

CL: no
UPC: Yes-- property replaced with specific property.


"I bequeath my 100 shares of stock in Tax Shelters, Inc. to my son Simon." At his death T owned 200 shares of stock in Tax Shelters, Inc. consisting of the 100 shares he owned when he executed the will, plus 100 shares distributed to T by the corporation six months after the will was executed. how many shares does Simon take?

Common Law:
- Stock Splits: Simon gets all 200 shares
- Stock dividends: original 100 shares

UPC: All 200 shares. A specific devisee takes "any additional or other securities of the same entity owned by the T because of action initiated by the entity, excluding any acquired by exercise of purchase options."
* If however T gave consideration for the extra shares then Simon doesn't get all 200.


What if, instead, Tax Shelters was acquired by Ling-Temco-Vought, and as part of the merger each shareholder was given one share of LTV for every two shares of Tax Shelters, Inc. At T's death he owned 50 shares of LTV stock. Does Simon get the LTV stock?

Common Law: no--adeemed
UPC: Yes. A specific devisee is entitled to securities to another entity owned by the testator as a result of merger, consolidation, reorganization, or other similar action initiated by the entity.


"I bequeath MY 100 shares of Coronado common stock to A; I bequeath 200 shares of Baker Company stock to B." Thereafter T sells all of her Coronado stock and all of her Baker stock.
What are A's rights?
What are B's rights?

A is adeemed
B is not deemed -- so executor would just purchase the shares for him.


"I devise Gatoracre to my son, Sylvestor. I devise my residuary estate to my wife, Willette."
At t's death Gatoracre is subject to a mortgage that is security for a note on which T was personally liable. S demands that the executor pay off the indebtedness so that G will pass to him free and clear of the encumbrance. Is he so entitled?

Common Law: YES (minority rule)
UPC (Majority): NO a specific devisee of encumbered property is not entitled to have the encumbrance paid out of the residuary estate unless the will shows such intent. Moreover, a general direction in the will to pay debts does not show such an intent.


I give $5000 to my nephew, John Paul Jones." At the time T executed the will he had two nephews whose names were James Peter Jones and Paul Frederick Jones. T had never met nor corresponded with either nephew and no nephew named John Paul Jones ever existed. Who takes the $5000?

Lapse to residual because no evidence. Extrinsic evidence is admissible to clear up latent ambiguities.**


Suppose T had a nephew named John Paul Jones, whom he hadn't seen for ten years. After T's death, Paul Frederick Jones comes in and says, "theres been a mistake! T told me on numerous occasion that he intended to , and that he had, left a legacy for me in the will." The stenographer who types the will says "i goofed. I have the notes T age me, from which I typed the will, and they show clearly that the legacy was supposed to have been given to Paul Frederick Jones." Is this evidence admissible?

Most States: NO-- violates plain meaning rule.
UPC States: Yes--> a court may reform the terms of a will even if unambiguous, to conform the terms to the T's intent if it is proved by clear and convincing evidence that both the accomplishment of the T's intent and the terms of the will were affected by a mistake of fact or law. In determining the T"s original tent, the court may consider evidence relevant even though the evidence contradicts an apparent plain meaning of the will.


Inheritance - Common Intestacy Rules
A. Decedent Survived by Spouse

1. If survived by spouse but not by issue or parent then spouse gets it.
2. If survived by spouse and issue all of whom are also issue of spouse then spouse gets it--passes it to issue.
3. If survived by spouse and issue at least one of whom is not issue of spouse, the spouse is commonly given a fixed amount off the top and a fraction of any excess. For ex. under the UPC, the spouse takes the first $100K and one half of any excess.


Inheritance - Common Intestacy Rules
B. Share Not Going to Spouse (Or all of estate if no spouse)

1. All to issue, if any.
2. If no issue, to parents or survivor.
3. If no issue or parents, to parent's issues.
Majority Rule: Issue take per capita (equally) if all are of same degree of relationship; otherwise they take by representation. See graph 12.


Inheritance - Common Intestacy Rules
C. Meaning of Probate Estate

The intestacy statute applies only to the probable estate--this is the estate that could have been controlled by a will had T executed one. It does not include life insurance, property held in trust, right of survivorship property, securities or bank accounts registered in payable on death or transfer on death form or property T did not own at death.


Frank gets M preggers. After child (Cliff) is born, F and M go their separate ways. Thereafter, M marries S; S does not adopt C.
a. If M dies intestate, can C inherit from Maude?
b. Assume instead that F dies intestate. Can C inherit from F?
c. Assume instead, that S dies intestate. Can C inherit from S?

a. Yes
b. No unless: legitimated by marriage or adjudication of paternity before of after F's death.
c. No unless adoption by estoppel (unperformed agreement to adopt).


Frank gets M preggers. After child (Cliff) is born, C is placed up for adoption and was adopted by Andersons.
a. If Mr. or Mrs. Anderson dies intestate, can C inherit from them?
b. IF C dies intestate, can mr or mrs Anderson inherit from him?
c. If M dies intestate, can C inherit from her?

a. Yes
b. yes
c. NO


Qualifications found in UPC and some other states: adoption and orphan adoption.

Stepparent adoption: W marries H1 and has kid, h1 dies and W marries H2 who adopts K. K continues to inherit from H1's family (does not sever natural parental ties).
Orphan adoption: both natural parents dies and C is adopted by close family member. C continues to inherit from other family members.


Simultaneous Death Act:

Wills: As though testator survived; as though beneficiary predeceased
Intestacy: As though intestate survived and heir predeceased
Insurance: As though insured survived; as though beneficiary predeceased
JTWROS: One-half as though tenant A survived, one-half as though tenant B survived. The point: simultaneous death prevents operation of right of survivorship; so one-half passes through each tenant's estate.


Death Act: 120 Hour Rule:

When passage of title to property depends on priority of death, absent a provision in the governing instrument to the contrary, a person is deemed to have predeceased the decedent by 120 hours.


Common Law (minority) Rule: death act

Any lifetime gift to a child or descendants (including adopted) presumed to be an advancement (that is, an advance payment) of his intestate share, to be taken into account in distribution of the intestate's estate.


UPC: majority

No advancement unless (i) declared as such in a contemporaneous writing by the decedent, or (ii) acknowledged as such in writing by the heir.


Doctrine of advancement applies to intestate estates. A companion doctrine called satisfaction applies to testate estates. UPC Majority Rule:

A lifetime gift is not a prepayment of any interest under a will unless: (i) the will provides for this treatment, (ii) the testator declares in contemporaneous writing that the gift is to be deducted from the devise or is in satisfaction of the devise or (iii) the devisee acknowledges in writing that the gift is in satisfaction.


Rights of Surviving Spouse: Surviving spouse's right to homestead, exempt property and family allowance.
In most states, statutes give a surviving spouse, one or more of the following:

1. Homestead: the right to live in the home for as long as the spouse chooses.
2. Exempt property: Household furniture, automobile, furnishing, appliances, personal effects (and other property to extent preceding does not equal allowance) in a fixed amount.
3. Family allowance: Reasonable allowance in money out of estate for maintenance of family during administration.


Was will written before marriage? (pretermitted spouse)-In most states, marriage after a will has no effect on will. But under the UPC and in a few other states, the effect of marriage following execution of will is that the pretermitted spouse:

claim an intestate share. Unless:
1) It appears from the will that omission was intentional
2) T made other provision for spouse by transfer outside will and the intent that the transfer be in lieu of provision in the will is shown by statements of the testator, the amount of the transfer or other evidence.


Should spouse claim an elective share of the "elective estate?"

In all states, the elective estate includes the net testamentary estate. IN UPC and some other states, the elective estate also includes:
1. Transfers with retained power to revoke, consume, invade, or dispose of principal for his own benefit.
2. Transfers with retained right to possess or enjoy the income from the property
3. Transfers held by decedent and another in right of survivorship form.
4. Transfers within two years of death to extent aggregate transfers to any one donee in either year exceeded $13K.
*Elective share is a fraction (commonly one-third) of the elective estate but interest received by spouse which are included in the elective estate are treated as if in satisfaction of the elective share.


UPC elective share of elective estate

The maximum elective share is increased to one-half but the share a spouse actually gets depends on the duration of the marriage. In effect, the elective shares vests at a rate of about 3 percent a year until it reaches a maximum of 50 percent (after 15 years).


Other important points about elective estate:

1. Elective share is in addition to exempt property, family allowance and homestead (or allowance in lieu of homestead).
2. It may be waived by writing contract after full disclosure
3. To claim, surviving spouse must file election within a set period of decedent's death.


H and W were married 1994. later that same year, H executed a will leaving all of this property to W if she survived him, otherwise to M, his mother. In 2000, H and W had a child, A. W died in childbirth. In 2013, H died in an automobile accident. He had never revoked or modified his 1994 will. What are A's rights to share in H's estate?

A pretermitted child is born or adopted after will and in UPC and some other states is entitled to take Intestate Share.
1. It appears from will that omission was intentional;
2. H left substantially all of his estate to the parent of the pretermitted child; or
3. H provided for child by transfer outside will and intended transfer to be in lieu of provision in will. Amount of outside transfer irrelevant; extrinsic evidence including H's oral statements admissible to show intent.
* Results on our facts: protected based on facts (entire estate).


Conduct Barring Party From Sharing In the Estate-Homicide:

UPC and most states, a person who feloniously and intentionally kills the decedents is not entitled to any benefit from decedent's estate by will, by intestacy (including family allowance, exempt property and homestead), under life insurance contract or otherwise. Property passes as if killer predeceased decedent.
Jointly held property with right of surviving passes half to killer and half as if killer predeceased decedent.
*not triggered by unintentional killed.



May renounce his interest in writing in whole or in part within nine months after the death of decedent. Renunciation results in property passing as if renouncing party predeceased decedent, unless will provide otherwise.


Advance Healthcare Directives: Living Will

A living will is a statement of an adult individual's desires with respect to life-sustaining procedures, artificial nutrition or hydration, and pain alleviating treatment when the individual becomes terminally ill or is in a persistent vegetative state.


Advance Healthcare Directives: Living will - Execution

In writing, signed by an adult testator or by another at his direction. Although the Uniform Healthcare Decisions Act does not require witnesses, most states do. The usual requirement is that there be two adult witness.


Advance Healthcare Directives: Living Will Revocation

By any manifestation of intent to revoke (including physical act) at any time before death without regard to the principal's mental or physical condition.


Advance Healthcare Directives: Durable Healthcare Power

used by one person (the principal) to appoint an agent to make healthcare decisions for the principal such as giving consent to medical treatment, accessing principal's medical records, and admitting or discharging principal from a healthcare facility. The instrument does not become operative until the principal loses capacity.


Advance Healthcare Directives: Durable Healthcare Power-- Eligibility to serve as an agent

Any person except an unrelated person who is associated the principal's healthcare facility.


Advance Healthcare Directives: Durable Healthcare Power- Execution

Same as for living will-- that is, in writing, signed by an adult principal or by another at his direction, and by two adult witnesses. In most states, the agent may not serve as a witness.


Advance Healthcare Directives: Durable Healthcare Power- Revocation

Unless otherwise stated in the power, by written or oral notice of revocation to either the agent or the principal's healthcare power is automatically revoked by the execution of a later durable healthcare power.


Advance Healthcare Directives: Durable Healthcare Power- Liability

An agent under a durable healthcare power is not civilly or criminally liable or subject to discipline for unprofessional conduct for healthcare decisions made in good faith.


Administration of Estates: Probate of will

A will is not effective unless it is admitted to probate. Statutes in most states impose civil liability on anyone who fails to deliver a decedent's will to the court.


Administration of Estates: Appointed of Personal Representative

The person who administers the estate is called a personal representative (PR). Some states refer to this person as an executor if the decedent nominally the person in his or her will and an administrator if the decedent died intestate.


Administration of Estates: Priority of Appointment

IF there is a will, priority goes first to the person nominated in the will, then typically to the surviving spouse unless disinherited in the will, then to other will beneficiaries (or heirs if there is no will).


Administration of Estates: Bond Requirement

Unless waived in the decedent's will, a PR (other than a bank) must post a bond.


Administration of Estates: Power to sell property

In the absence of an explicit authority in the will, a PR must usually get a court order to sell real property.


Administration of Estates: Inventory Requirement

The PR must file an inventory of all assets of the estate. The inventory must include the value of the property.


Administration of Estates: Publication of Notice to Creditors

PR must publish notice of administration in the legal notices section of the newspaper. In addition, the PR must send actual notice of administration to all known or reasonably discoverable creditors. This starts a short (typically 3 or 4 months) statute of limitations. Exception for secured creditors.


Will Contests: Standing

Any person who would take more as heir if there were no will and as beneficiary under a prior will. Always start with this.


Will Contests: Lack of Testamentary Capacity

Burden of proof on contestants
1. Did T understand the nature of the act he was doing?
2. Did T know the nature and character of his property?
3. Did T know the natural objects of his bounty?
4. Did T understand the disposition he wished to make?


Evidence of T's capacity or lack of it must relate to the circumstances at the time the will was executed, or shortly before or shortly thereafter. The more distant in time from the will's execution a particular fact may be, the less significant it has on the question in issue: Did T, at the time the will was executed, have capacity?

Mere old age, physical frailty, sickness, failing memory or vacillating judgment are not inconsistent with testamentary capacity if the testamentary prerequisite (above) were possessed by the testator.


If T had been adjudicated incompetent and a guardian appointed, this is evidence of lack of capacity but it does not raise a conclusive presumption. Reason:

(i) the test for whether a guardian should be appointed is different from the four-point test above; (ii) Even if T had a mental problem, the jury could find that T wrote the will during a "lucid" interval.


Insane delusion: A distinctive form of testamentary incapacity:

Where T is otherwise sane, but the will (or a gift in the will) is a product of an insane delusion, having no basis in fact or reason, which T adheres to against all reason and evidence, and where the will (or gift in the will) is the product of the insane delusion.


Undue Influence: Burden of Proof is on Contestant, who must show -- each of three things:

1. Existence and exertion of the influence;
2. Effect is to overpower the mind and will the testator
3. The result is a will that would not have been executed but for the influence
** Influence is not undue unless the free agency of the testator was destroyed and a will produced that expresses the will, not of the testator but of the one exerting the influence.


While evidence of undue influence is usually circumstantial, these alone are not enough:

1. Mere opportunity to exert influence
2. Mere susceptibility to influence due to illness, age. Such evidence does not (by itself ) establish that T's mind was in fact subverted and overpowered
3. Mere fact of "unnatural disposition" -- that some children take less than others or are excluded entirely. It is only where all reasonable explanation for devise is lacking that the trier of facts may take this circumstances as badge of undue influence.


Undue influence may be shown as to the entire will, or as to one gift in the will

In most states, a presumption of undue influence arises upon a showing that a principal beneficiary under the will who stands in a confidential relationship to the testator (attorney-client, priest-parishioner, doctor-patient) draws or procures the execution of the will
* suspicious circumstances may also tend to show undue influence. Eg. Relative stranger insinuates himself with T when T, because of mental of physical condition or age is susceptible to influence and T then writes will that disinherits children.


Will includes this clause: "Any person who contests this will shall forfeit his legacy." A son, who was left only $10K in will, claims that the testator lacked capacity and that the will was the product of undue influence. What is the effect of the "no contest" clause (sometimes called "in terrorem" clause) on Son's claims?

Majority: Clause won't be enforced as long as he has probable cause for the contest.